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Lecture 4

Lecture 4 - Constitutions and the Judiciary

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University of Ottawa
Political Science
Joseph Roman

Jan. 28, 2014 Constitutions and the Judiciary • Rules of the state • Regulating political relations • Types of constitutions • Judges and their roles in constitution – and decision-making Constitutions as Structuring Politics • Establishing relationships between states and citizens and between the branches of a state’s government, i.e. the executive, the legislature, and the judiciary • Limits are placed on what governments can do • Constitutions as a framework for action which determine the political rules of the game • Constitutions as meta-norms The Birth of Constitutions • Regime change • Losing a war and undergoing construction • Independence *Not all Constitutions are necessarily generated from within Forms of Constitutions 1. Codified: written down 2. Uncodified: guided by conventions that are derived from traditions (UK) • Accumulation of experiences and ways of doing things determine a convention • Rights are not absent under Uncodified constitutions Problems of Constitutions • Inherently limited • Constitutions tend to be born out of circumstances and their applications are difficult to discern • Constitutions as a living document • Constitutions only apply to the public sphere Features of Constitutions • Most constitutions are codified 1. Fundamental laws outline political procedures and supreme laws 2. An entrenched status that makes a constitution a special legal document that outlines the steps for its transformation 3. Codification 4. Allocations of power Elements of a Fair and Democratic Constitution • Democratic constitutions ought to provide modicums of fairness to maximize political participation and open the door to change 1. Rule of law 2. Apeaceful transfer of power between governments 3. Separation of powers and checks and balances 4. Relations between governments and citizens 5. Where sovereignty resides 6. Government accountability 7. Final arbiters – varies according to type of government Perspectives on Constitutions: The Old Constitutionalism • Descriptions of constitutions • Focus on formalities • Legal mechanisms • Criticized for ignoring politics Perspectives on Constitutions: The New Constitutionalism • Focus on the protection of rights • Maximizing effective government action with change in mind • Tailoring constitutions to their specific contexts Perspectives on Constitutions: The New Institutionalism • An approach rather than a theory • Focus on how states are organized in order to explain how policies may unfold • Institutions provide the framework for action • Institutions result from past political battles • Emphasis on historical understanding • Path dependency • Mobilization of bias occurs when interests get inscribed into institutions • Rule routinize behavior and strategies • Customs guide action Types of Constitutions:Absolutist Constitutions • Only present in authoritarian states (i.e. China) • The authority to change and produce legal norms is centralized and absolute (could be a single person or a group) • Ruling meta-norms is that rulers are above the law • Popular sovereignty, rights, and the separation of powers are rejected Types of Constitutions: Legislative Supremacy • Provides for a set if governmental institutions and elections to the legislature • The meta-norm is legislative sovereignty • Rights are not codified but, rather, granted by statutes in parliament or guided by conventions • Judicial review of laws are prohibited Types of Constitutions: Higher Law • Substantive constraints are placed on state action by codified rights • Judicial means are provided for enforcing rights • State institutions are established by and gain their authority from a constitution • Ultimate authority may be assigned to citizens • Public authority must be aligned with constitutional norms • Rights constrain state action • Amendment formulas are written down Problems: • Tensions exist between rights and public aut
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